Presenter:
Vernon Bevill

I.
Discussion: Responsibility
for establishing seasons,
bag limits, means, methods,
and devices for harvesting
migratory game birds within
U.S. Fish and Wildlife
Service (Service) frameworks
is delegated to the Commission
under Chapter 64, Subchapter
C, Parks and Wildlife
Code. Parks and Wildlife
Code, §64.022 authorizes
the Executive Director,
after notification of
the Chairman, to engage
in rulemaking. Staff received
permission from the Regulations
Committee at its April
1999 meeting to publish
the proposed regulations
(located at Exhibit A)
in the Texas Register
for public comment. The
proposed regulations appeared
in the April 30, 1999
issue of the Texas Register
(24 TexReg 3300). Staff
has gathered and analyzed
public comment, and a
summary will be available
at the time of the meeting.
The Service frameworks
for late-season species
will be released during
the first week in August,
so staff will brief the
Commission on any changes
made by the Service at
the time of the hearing.

Additionally, staff will
brief the Commission on
rulemaking undertaken by
the Executive Director under
the provisions of Parks
and Wildlife Code, Chapter
64, to implement recent
changes to federal law concerning
baiting of migratory game
birds. Proposed amendments
to the state’s baiting
regulations (located at
Exhibit B) were published
in the July 9, 1999, issue
of the Texas
Register (24
TexReg 5147), and were adopted
after notification of the
Chairman prior to the August
Commission hearing.

II.
Recommendation: The
staff recommends the Texas
Parks and Wildlife Commission
adopt the following motion:

"The Texas Parks and
Wildlife Commission adopts
amendments to 31 TAC §65.318
and §65.320, concerning
the late-season provisions
of the Migratory Game
Bird Proclamation, with
changes to the proposed
text (located at Exhibit
A) as published in the
April 30, 1999, issue
of the Texas
Register (24
TexReg 3300)."

Migratory
Game Bird Proclamation
Proposed Late Season Provisions

§65.318. Open Seasons
and Bag and Possession Limits
- Late Season. Except as
specifically provided in
this section, the possession
limit for all species listed
in this section shall be
twice the daily bag limit.

(1) Ducks, mergansers,
and coots. The daily bag
limit for ducks is six,
which may include no more
than five mallards or
Mexican mallards (Mexican
duck), only two of which
may be hens, one mottled
duck, one pintail, two
redheads, one canvasback,
and two wood ducks. The
daily bag limit for coots
is 15. The daily bag limit
for mergansers is five,
which may include no more
than one hooded merganser.

(II) Canada geese and
brant: October 30,
1999 [31,
1998] - January 30,
2000 [31,
1999]. The daily bag
limit is one Canada goose
or one brant, except during
the period from January 17-30 [18-31],
when the bag limit is
two in the aggregate.

(3) Special Youth-Only
Season. There shall be
a special youth-only duck
season during which the
hunting, taking, and possession
of ducks, mergansers,
and coots is restricted
to licensed hunters 15
years of age and younger
accompanied by a person
18 years of age or older.
Bag and possession limits
in any given zone during
the season established
by this paragraph shall
be as provided for that
zone by paragraph (1)
of this section. Season
dates are as follows:

(A) High Plains Mallard
Management Unit: October 9,
1999 [10,
1998];

(B) North Zone: October 23,
1999 [24,
1998]; and

(C) South Zone: October 16,
1999 [17,
1998].

§65.320. Extended
Falconry Season - Late
Season Species.

(a) It is lawful to take
the species of migratory
birds listed in this section
by means of falconry during
the following Extended
Falconry Seasons. Ducks,
coots, and mergansers:

Migratory
Game Bird Proclamation
Baiting Provisions
Proposed Preamble

1. Introduction.

The Texas Parks and Wildlife
Department proposes amendments
to §65.309 and 65.310,
concerning the Migratory
Game Bird Proclamation.
The amendments are necessary
to adjust the state’s
baiting regulations to conform
with recent rulemaking by
the U.S. Fish and Wildlife
Service. The amendment to §65.309,
concerning Definitions,
adds definitions for new
regulatory terminology.
The amendment to §65.310,
concerning Means, Methods,
and General Requirements,
establishes those practices
or activities which may
be lawfully conducted and
those practices or activities
that would constitute the
offense of baiting migratory
game birds.

2. Fiscal Note.

Robert Macdonald, Wildlife
Division regulations coordinator,
has determined that for
each of the first five years
that the proposed rules
are in effect, there will
be no additional fiscal
implications to state or
local governments as a result
of enforcing or administering
the proposed amendment.

3. Public Benefit - Cost
Note.

Mr. Macdonald also has
determined that for each
of the first five years
the amendments as proposed
are in effect:

(A) The public benefit
anticipated as a result
of enforcing the rules as
proposed will be the department's
discharge of its statutory
obligation to manage and
conserve the state's populations
of migratory game birds,
implementation of commission
policy to maximize recreational
opportunity for the citizenry,
and consistency with federal
regulations governing the
hunting of migratory game
birds.

(B) There will be no effect
on small businesses. There
are no additional economic
costs to persons required
to comply with the rules
as proposed.

(C) The department has
not filed a local impact
statement with the Texas
Workforce Commission as
required by Government Code, §2001.022,
as this agency has determined
that the rules as proposed
will not impact local economies.

(D) The department has
determined that there will
not be a taking of private
real property, as defined
by Government Code, Chapter
2007, as a result of the
proposed rules.

The amendments are proposed
under Parks and Wildlife
Code, Chapter 64, Subchapter
C, which authorizes the
Commission and the Executive
Director to provide the
open season and means, methods,
and devices for the hunting
and possessing of migratory
game birds.

§65.309. Definitions.
The following words and
terms, when used in this
subchapter, shall have the
following meanings, unless
the context clearly indicates
otherwise. All other words
and terms shall have the
meanings assigned in Subchapter
A of this chapter (relating
to Statewide Hunting and
Fishing Proclamation).

(1) Baited area—Any
area where salt,
grain, [shelled,
shucked, or unshucked corn,
wheat, or other grain, salt,]
or other feed has
been [capable
of luring, attracting, or
enticing such birds is directly
or indirectly] placed,
exposed, deposited, distributed,
or scattered, if
that salt, grain, or other
feed could serve as a lure
or attraction for migratory
game birds to, on, or over
areas where hunters are
attempting to take them.
Any such area will remain
a baited area for ten days
following the complete removal
of all such salt, grain,
or other feed.[;
and the area shall remain
a baited area for ten days
following complete removal
of all such corn, wheat,
or other grain, salt or
other feed].

(2) Baiting—The direct
or indirect placing,
exposing, depositing,
distributing, or scattering
of salt, grain, [shelled,
shucked, or unshucked
corn, wheat, or other
grain, salt,] or other
feed that could serve
as a lure or attraction
for migratory
game birds to, on, or
over areas where hunters
are attempting to take
them[so as
to constitute for migratory
game birds a lure, attraction,
or enticement to, on,
or over areas when hunters
are attempting to take
such birds].

(8) Manipulation
- The alteration of natural
vegetation or agricultural
crops, including but not
limited to mowing, shredding,
discing, rolling, chopping,
trampling, flattening,
burning, and herbicide
treatments. Manipulation
does not include the distributing
or scattering of grain,
seed, or other feed after
removal from or storage
on the field where grown.

(9) Natural vegetation
- Any non-agricultural,
native, or naturalized
plant species that grows
at a site in response
to planting or from existing
seeds or propagule. Natural
vegetation does not include
planted millet. However,
planted millet that grows
on its own in subsequent
years after the planting
is considered natural
vegetation.

(11) Normal agricultural
planting, harvesting,
or post-harvest manipulation
- A planting or harvesting
undertaken for the purpose
of producing or gathering
a grain, or manipulation
after such harvest and
removal of a grain, that
is conducted in accordance
with official recommendations
of State Extension Specialists
of the Cooperative Extension
Service of the U.S. Department
of Agriculture.

(12) Normal soil
stabilization practice
- a planting for agricultural
soil erosion control or
post-mining land reclamation
conducted in accordance
with official recommendations
of State Extension Specialists
of the Cooperative Extension
Service of the U.S. Department
of Agriculture.

(13) [(8)]
Personal residence—One's
principal or ordinary home
or dwelling place. The term
does not include a temporary
or transient place of residence
or dwelling such as a hunting
club, or any club house,
cabin, tent, or trailer
house used as a hunting
club, or any hotel, motel,
or rooming house used during
a hunting, pleasure, or
business trip.

(14) [(9)]
Sinkbox—Any type of
low floating device having
a depression which affords
the hunter a means of concealing
himself below the surface
of water.

(15) Waterfowl
- ducks (including teal),
geese, and coots.

(16) [(10)]
Wildlife resource—For
the purposes of this subchapter,
wildlife resource includes
all migratory birds.

§65.310. Means, Methods,
and Special Requirements.

(a) The following means
and methods are lawful,
subject to control of subsection
(b) of this section, in
the taking of migratory
game birds:

(1) - (3) (No change.)

(4) taking on or over unbaited
areas, including:

(A) standing crops
or flooded standing crops
(including aquatics);

(B) standing, flooded,
or manipulated natural
vegetation;

(C) flooded harvested
cropland;

(D) lands or areas
where seeds or grains
have been scattered solely
as a result of a normal
agricultural planting,
harvesting, or post-harvest
manipulation;

(E) normal soil
stabilization practice;

(F) from a blind
or other place of concealment
camouflaged with natural
vegetation;

(G) from a blind
or other place of concealment
camouflaged with vegetation
from agricultural crops,
as long as such camouflaging
does not result in the
exposing, depositing,
distributing, or scattering
of grain or other feed;

(H) standing crops
or flooded standing agricultural
crops where grain has
been inadvertently scattered
as a result of a hunter
entering or exiting a
hunting area, placing
decoys, or retrieving
downed birds.

(5) except for
waterfowl and cranes,
the taking of migratory
birds on or over lands
or areas that are not
otherwise baited areas,
and where grain or other
feed has been distributed
or scattered solely as
the result of manipulation
of an agricultural crop
or other feed on the land
where grown or solely
as the result of a livestock
feeding operation as defined
in §65.309(7) of
this title (relating to
Definitions).

(6) [(5)]
taking by the use of power
boats, sailboats, or other
craft when used solely as
a means of picking up dead
or injured birds; and

(7) [(6)]
paraplegics and single or
double amputees of the legs
may take migratory game
birds from any stationary
motor vehicle or motor-driven
land conveyance.

(8) [(7)]
taking by means of falconry,
but the hunting is limited
to persons holding valid
falconry permits issued
under the authority of Parks
and Wildlife Code, Chapter
49.

(b) The following means
and methods are unlawful
in the taking of migratory
game birds:

(1)-(6) (No change.)

(7) by the aid of baiting,
or on or over any baited
area, or where migratory
birds are lured, attracted,
or enticed by bait where
a person knows or reasonably
should know that the area
has been baited. [However,
nothing in this subsection
shall prohibit: ]

[(A) the taking of migratory
game birds, including
waterfowl, on or over
standing crops, flooded
standing crops (including
aquatics), flooded harvested
croplands, grain crops
properly shocked on the
field where grown, or
grains found scattered
solely as the result of
normal agricultural planting
or harvesting;]

[(B) the taking of migratory
game birds, except waterfowl,
on or over lands where
shelled, shucked, or unshucked
corn, wheat, or other
grain, salt, or other
feed that] has been distributed
or scattered as the result
of bona fide agricultural
operations or procedures,
or as a result of manipulation
of a crop or other feed
on the land where grown
for wildlife management
purposes; provided that
manipulation for wildlife
management purposes does
not include the distributing
or scattering of grain
or other feed once it
has been removed from
or stored on the field
where grown; and]

[(C) the taking of migratory
game birds on or over
moist soil or aquatic
vegetation manipulated
by any means.]

(8) the hunting
of waterfowl or cranes
on or over:

(A) manipulated,
planted millet, unless
the millet was planted
not less than one year
before hunting; or

(B)crops that have
been manipulated, unless
the manipulation is a
normal agricultural planting,
harvest, or post-harvest
manipulation.

(9) the placing
or directing the placement
of bait on or adjacent
to an area for the purpose
of causing, inducing,
or allowing any person
to take or attempt to
take any migratory game
bird by the aid of baiting
on or over the baited
area.

(c)-(e) (No change.)

This agency hereby certifies
that the proposal has been
reviewed by legal counsel
and found to be within the
agency’s authority
to adopt.